The Statewide challenge to the accuracy of the breath test machine used in Massachusetts took a positive turn for the defense with a ruling from Massachusetts Supreme Court Justice Botsford.

The Massachusetts Supreme Judicial Court ruled that defendants in a set of cases should be provided access to breathalyzer instruments and the necessary related materials to permit dynamic testing to be performed. The defendants in the cases of Commonwealth v. Figuereo and Commonwealth v. Ananias challenged the scientific reliability of the alcohol breath test results produced by a model of breathalyzer used throughout the Commonwealth, the Alcotest 9510. In both sets of cases, a Daubert-Lanigan hearing is anticipated, and this decision is an effort to define the scope of discovery relating to the defendant’s challenges to the reliability of the Alocotest’s breath test results.

The defendants have been permitted to conduct both static and dynamic testing of the Alcotest in relation to their anticipated hearings. Static testing involves analyzing the “source code” used in manufacturing the instruments and tailoring them to meet Massachusetts specifications. The “source code” of the breath test, and most computerized devices, is the code written by computer programmers when they develop the software that runs the machine. As the source code is written by programmers that created the breath test, having access to that code allows defense attorneys to have the code analyzed by a programming expert to determine whether the machine has any errors or faults.

This type of testing seeks to determine what errors may affect the program in operation. Static testing may include simulation, modeling, and hypothesis. Dynamic testing involves executing the Alcotest computer program using the actual instrument and evaluating the program’s source code as it’s operating in real time.

Defendants will have available to them the Alcotest source code used in Massachusetts and two Alcotest instruments for purposes of running the tests. Giving defendants the opportunity to conduct dynamic testing in addition to static testing will provide a more complete and focused analysis of the source code and ultimately the reliability of the breath test results than would be possible with static testing alone.

Justice Botsford Is allowing the defense expert to review the source code for 60 days. Based on the statement in the defense expert affidavit, she wrote in her decision that he will be held to his word.

The Chief Justice of the District Court was given the task of assigning a judge to handle this appeal. Once a judge is selected, the hearing could move forward toward an ultimate hearing date challenging the reliability of the machine. The Court will need to set a compliance date for the Commonwealth to provide the source code, but once that is accomplished, the hearing should be in the near future, meaning in the Fall.

The current challenge to the breath test originated after the Massachusetts Supreme Court’s decision in Commonwealth v. Camblin. This case held that the defense was entitled to a hearing regarding the reliability of the source code for the prior breath test machine, the Alcotest 7110. Recently, Judge Sullivan ruled that the source code was reliable for the old machine the 7110; however, the source code challenge in that case did not involve defense experts using a dynamic testing as will occur in this challenge. To learn more about dynamic testing of a source code, Computer Weekly has a good explanation of the differences in both types of testing.

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